Chapter 13. Vicarious Liability

• Pages: 361-406

INTRODUCTION

The expression ‘vicarious liability’ refers to the situation where D2 is liable to C for

damage caused to C by the negligence or other tort of D1. It is not necessary that D2

should have participated in the tort or have been in any way at fault. D2 is liable sim-

ply because he stands in a particular relationship with D1. That relationship is nor-

mally one of master and servant or, in modern parlance, ‘employer and employee’.

In early medieval times a master was held responsible for all the wrongs of his

servants. Later, as the feudal system disintegrated, the ‘command theory’ emerged,

under which a master was liable only for those acts of his servants which he had

ordered or which he had subsequently ratied.1 Later still, with the development

and expansion of industry and commerce, the ‘command theory’ fell into disuse

for two main reasons: rst, under modern conditions, it was no longer practicable

for an employer always to control the activities of his employees, especially those

employed in large businesses; and, secondly, the greatly increased hazards of mod-

ern enterprises required a wider range of responsibility on the part of employers

than that which had been i mposed in earlier ti mes. The theory of vicarious liability

which eventually emerged was that a master is liable for any tort committed by his

servant in the course of the ser vant’s employment, irrespective of whether the mas-

ter authorised or ratied the activity complained of, and even though he may have

expressly forbidden it.

The modern theory of vicarious liability is based not on fault but on considera-

tions of social policy.2 It may seem unfair and legally unjust iable that a person who

has himself committed no wrong should be liable for the wrongdoing of another;

on the other hand, it may be argued that a person who employs others to advance

his own economic interests should be held responsible for any harm caused by

the actions of those employees,3 and that the innocent victim of an employee’s tort

should be able to sue a nancially responsible defendant,4 who may in any case take

out an insurance policy against liability. The cost of such insurance will, of course,

ultimately be passed on to the public in the form of higher prices. However, care

should be taken not to hamper business enterprise u nduly by imposing too wide

a range of liability on employers. Therefore, there is the requirement that a master

will generally be liable only for those torts which h is servant committed duri ng

the course of his employment – that is, while the servant was doing the job he was

employed to do. 5

1 For a history of the doctrine, see Holdswort h, History of English Law, 7th edn, 1956–72, Vol III,

London: Sweet & Maxwell, pp 472 et seq. On state l iability in the Caribbean, s ee Rawlins, H (1997)

7 Carib LR 497.

2 Imperial Chemical Indust ries Ltd v Shatwell [1965] AC 656, at 686.

3 Duncan v Finlater (1839) 7 ER 934, at 940, per Lord Brougham.

4 In most cases, the employee will not have the r esources to pay the claimant ’s damages, and so wi ll

not be worth suing.

5 The onus of proving the existence of a ma ster/servant relationship a nd the commission of the tort

during the cours e of the servant’s employment rests on the claim ant.

CHAPTER 13

VICARIOUS LIABILITY

DOI: 10.4 324/9781351065108 -13

10.4324/97813 5106 5108 -13

362 Commonwealth Caribbean Tort Law

SERVANTS AND INDEPENDENT CONTRACTORS

A person who is employed to do a job may be either a servant or an independent

contractor. It is important to decide which category he comes into, for whilst an

employer is liable for the torts of his servants, he is generally not liable for those of

his independent contractors.6 The traditional test for determining this question is

that of control:

A servant may be dened as any pers on employed by another to do work for him on the

terms that he, the serva nt, is to be subject to the control and direc tions of his employer:

an independent contractor is one who is h is own master. A servant is a person engaged

to obey his employer’s orders from time to time; an indep endent contractor is a person

engaged to do certain work, but to exercise hi s own discretion as to the mode and t ime

of doing it – he is bound by his contract, but not by his employer’s orders.7

A servant is employed under a contract of service, whereas an independent contrac-

tor is employed under a contract for services:

The distinct ion between the contract for services and the cont ract of service can be

summaris ed in this way: in the one case the master c an order or require what is to be

done; while in the other case he c an not only order or require what is to b e done but

how it shall be done.8

Thus, for example, a maid in a private house would be under the control of her

employer as to how she did her job, and she would therefore be employed under a

contract of service; whereas an electrician or plumber employed to do a particular

job in the house would be under the control of his employer only as to what he must

do, not as to how he should do it, and he would therefore act under a contract for

services. Again, a man who was employed as a regular driver would be the servant

of his employer, whereas a taxi driver engaged for a particular journey or journeys

would be an independent contractor of the person who engaged him.

However, although the control test may be satisfactory in the most basic domes-

tic situations, it has proved to be quite inadequate in the context of modern business

enterprise, where large organisations commonly employ highly skilled professional

persons under contracts of service, and yet do not or cannot control the manner in

which they do their work. For example, it would be absurd to suggest that a pilot

employed by Caribbean Airlines could be controlled as to the manner in which he

ew a plane, or that a surgeon in the UWI Teaching Hospital in Jamaica could be con-

trolled as to the manner i n which he performed an operation; nevertheless, the pilot

and the surgeon would be the servants of the airli ne and the hospital respectively.

A useful alternative to the control test, and one which is more in keeping with

the realities of modern business, is what may be called the ‘organisation test’.9 This

test was explained by Denning LJ thus:10

6 Quarman v Burnett [1835–42] All ER Rep 25 0. See, generally, Bacchus, R, in Kodilinye, G and

Menon, PK (eds), Commonwealth Caribbean Legal Studies, 1992, London: Butterworths, pp 287–311.

7 Heusto n and Buckley, Salmond and Heuston on the Law of Torts, 21st edn, 1996, London: Sweet &

Maxwell, p 435.

8 Collins v Hertfordshire CC [1947] KB 598, at 615, per Hilb ery J.

9 Fleming, The Law of Torts, 6th edn, 1983, Sydney: LBC Informat ion Services, p 344.

10 Stevenson, Jordan and H arrison Ltd v Macdonald and Evans Ltd [1952] 1 TLR 101, at 111.

Chapter 13: Vicarious Liability 363

Under a contract of service, a man is employed as part of a busi ness, and his work is

done as an integral part of the business; whereas under a cont ract for services, his

work, although done for the business, is not integ rated into it but is only accessory to it.

On this test, the following are examples of servants of the organisations which

employ them: hospital doctors and nurses, university lecturers, schoolteachers,

bank clerks, ofce clerical staff, airline pilots, newspaper editors, factory workers

and hotel staff; and the following are examples of independent contractors: free-

lance journalists and photographers, attorneys, architects and engineers in private

practice, self-employed electricians, carpenters, plumbers and taxi drivers driving

their own vehicles.

A third test which has been suggested is that of MacKenna J in Ready Mixed

Concrete (South East) Ltd v Minister of Pensions.11 This is known as the ‘multiple’ or

‘mixed’ test. The three conditions suggested by MacKenna J for the existence of a

contract of service or employment are:

(a) the employee agrees to provide his work and skill to the employer in return for

a wage or other remuneration;

(b) the employee agrees, expressly or impliedly, to be directed as to the mode of

performance to such a degree as to make t he other his employer; and

(c) the other terms of the contract are consistent with there being a contract of

employment.

In applying the test, however, the courts do not conne them selves to the three listed

factors; rather, they consider a wide range of factors, including the degree of control

over the worker’s work; his connection with the business; the term s of the agreement

between the parties; the nature a nd regularity of the work; and the method of pay-

ment of wages.

Finally, the Jamaican Court of Appeal in Harris v Hall12 adopted the guidelines

suggested by Cooke J in Market Investigations Ltd v Minister of Social Security,13 to the

effect that:

Control will no doubt always have to be considered, although it can no longer b e regarded

as the sole determin ing factor … Factors which may be of importance are suc h matters as

whether the man perfor ming the services provides his own e quipment, whether he hires

his own helpers, what degree of n ancial risk he takes, what degree of responsibi lity for

investment and management he ha s, and whether and how far he has an opportunity of

proting from sound man agement in the performance of his ta sk.

LENDING A SERVANT

Where X, the ‘general employer’ of Y, agrees to ‘lend’ Y to Z, and whilst in the temporary

service of Z, Y commits a tort, the general employer will remain liable, unless he can

prove – and the burden of proof is a heavy one – that, at the time the tort was committed,

11 [1968] 2 QB 497.

12 (1997) 34 JLR 190.

13 [1968] 3 All ER 732, at 737.